Is the Wall of Separation hiding the Injustices of the Church?
The first amendment in the constitution of the United States of America has acted as a wall of separation between the church and the state, but does it hold up the notions of liberty and religious freedom?
“O’er the land of the free and the home of the brave?” The official national anthem of the United States’s lyrics come from a poem written by Francis Scott Key in 1814 called Defence of Fort M’Henry. It calls the US the land of free, which is a sentiment shared by the citizens of America when citing their pride in the nation. The idea of being free is integral to the identity of the United States; thus, it is not hard to imagine that religious freedom holds a special account in its constitution. The founding fathers of the US were visionary secularists who sought religious freedom and made the United States the first modern republic with its foundation in the separation of state and church. In the year 1791, the US constitution ratified the first ten amendments, out of which the first one clearly established the state’s position on religious freedom —
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The initial seeds for these sentiments were planted by the Virginia Statute of Religious Freedom written by Thomas Jefferson. It was drafted in 1777 but wasn’t enacted into state law until the year 1786. The statute was the first of its kind in recorded human history to argue for complete religious freedom for everyone. The vital thing about the bill was it presented the freedom to both believers and non-believers. The other important person that shines brightly alongside Jefferson when it comes to religious freedom is James Madison. It was Madison’s arguments that won Jefferson’s statute in the state of Virginia, which was inspired by the Enlightenment themes from the positions on religious tolerance by John Locke and Adam Smith. The elegance with which Jefferson wrote reflected his views on religious freedom, even though they were embedded in the supreme idea of a creator. It established that religious freedom was a natural right of a man, as he was created free and any means to restraint that will be tyrannical and hypocritical — “created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness…” It also further inspired James Madison to add this amendment to the US constitution. The first amendment is highly driven by the Virginia Statute, especially along these lines —
“that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”
The first part of the statement established the Free exercise clause of the first amendment — “or prohibiting the free exercise thereof; or abridging the freedom of speech” while the last part of the statement helped establish the Establishment clause of the first amendment — “no law respecting an establishment of religion.” This clearly separated the church and state, created a legal basis for religious freedom and protected the religious rights of citizens to practice their religion. But legal religious freedom doesn’t mean it turns a nation into a safe haven. The idea behind the Virginia Statute was to take religion out of politics and turn it into private practice, diminishing the church’s power and establishing a nation-state. But the practicality of it didn’t pan out the same way. The civil rights of citizens often collided with the religious freedom exercised by the established churches. There are many cases one can refer to understand how established religious institutions infringed on the civil rights of their constituents, and they were legally in right as seen by Supreme Court under the first amendment. The two such cases that we shall look at involve the employment issues concerning church-owned institutions and the federal law against employment discrimination.
Legal Cases —
The first case that concerns this issue is Hosanna-Tabor Evangelical Lutheran Church And School V. Equal Employment Opportunity Commission et al. (2012). In this case, Cheryl Perich was fired from her job as commissioned minister after she took disability leave, after which she filed a complaint with Equal Employment Opportunity Commission, claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The church cited Perich’s “insubordination and disruptive behaviour,” as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.” The supreme court passed the verdict in favour of the church; Roberts, C. J., delivered the opinion for a unanimous Court, citing the first amendment and the state’s role to not interfere in established church practices. They agreed that the appointment or firing of ministers falls under the purview of the church, and they are exempted from the anti-discrimination law under the employment act, thus upholding religious freedom. This set a precedent for a number of future cases that were tried in a similar fashion.
One such case was the Our Lady Of Guadalupe School V. Morrissey-Berru (2020). Agnes Morrissey-Berru taught at Our Lady of Guadalupe School (OLG), and Kristen Biel taught at St. James School; both were employed under similar contracts and were demoted and fired respectively for old age and for asking for a leave of absence for breast cancer. But since the first case mentioned above, the court was barred from entertaining any cases for employment discrimination based on “ministerial exception”. But in this case, their title wasn’t that of a minister but a teacher; thus, the case was tried in the supreme court together after both individuals won in the ninth circuit. Now, the five supreme court judges rule in favour of the church, while two [Sotomayor J. and Ginsburg, J.] dissented, citing that the state can’t establish the role that teachers serve in the church and moreover, since they taught subjects related to religion and participated in church’s activities with students, their employments are under the purview of church and not state. The dissenting statement summarizes the issues that the court overlooked —
“In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school teachers of their legal protections, I respectfully dissent. Our pluralistic society requires religious entities to abide by generally applicable laws.”
On its face, both the cases were employment discrimination based on disability, age and illness, but since their employment was under an established church and in some way related to religious activities of the church, it saved the church from facing any damages. The religious law trumped the basic civil law of the citizens, which runs counter to Jefferson’s idea of religious freedom. Jefferson’s statute mentions an individual’s right to religious freedom — “by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.” In these cases, the civil activities, i.e. employment of these individuals were affected by the interpretation of religious law. The court or state can not establish religious institutes, nor can it interfere in their workings, but that doesn’t justify the exploitation of the civil rights of their members. These cases aren’t isolated cases; there are many numerous cases, and even outside the field of employment, that infringe on the basic civil rights of citizens, but since they are members of the church, the state is helpless to act or enforce retribution. Church, in its orthodox ways, has protected its interests citing the first amendment, while the land of free suffers a blow. The wall of separation of state and church was an attempt to keep religion out of politics, but it has turned into a wall of ignorance on the activities of the church. Religious freedom might be in tenets of the American constitution, but its practices have hammered the civil liberties of its citizens in more than one way.
Bibliography
Harris, James F. The Serpentine Wall. 1st Edition. New York: Routledge, 2017.
Key, Francis Scott. Defence of Fort M’Henry. [Baltimore, MD, Sept 17, 1814] Pdf.
Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. (2020).
U.S. Constitution. “Bill of Rights.” National Archives, December 15, 1791.
This article was originally written as a study of the United States’ first amendment.
